During the Pentagon Papers controversy over the release of Vietnam-related military and other documents in 1971, if a columnist had written that “the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences,” and that “that decision must ultimately be made by the government,” he or she would have been tagged in the press as a “(Richard) Nixon defender” and “an enemy of press freedom.”

How ironic it thus is that Thursday, in his New York Times review of Glenn Greenwald’s new book (“No Place to Hide”), current liberal Vanity Fair columnist and former CNN “Crossfire” host Michael Kinsley used that very language as he went after Greenwald, who has been NSA eavesdropping leaker Edward Snowden’s go-between for the past year, with a vengeance. And yes, he did it at the Times, the very newspaper which was at the heart of the Pentagon Papers litigation that was ultimately decided in its favor.

At Instapundit, Glenn Reynolds reaction was spot-on: “I don’t for a minute think that Kinsley would say this if we had a Republican in the White House.” It took me about five minutes last night to validate Reynolds’s double-standard concern.

Before getting to that, let’s look at some what Kinsley wrote.

Kinsley may have some valid points about Greenwald’s persecution complex, but his claim that it is without basis is clearly offensive in light of what we know about how the government, particularly the Obama government, operates (bolds are mine throughout this post:

… (Greenwald’s) story is full of journalistic derring-do, mostly set in exotic Hong Kong. It’s a great yarn, which might be more entertaining if Greenwald himself didn’t come across as so unpleasant. Maybe he’s charming and generous in real life. But in “No Place to Hide,” Greenwald seems like a self-righteous sourpuss, convinced that every issue is “straightforward,” and if you don’t agree with him, you’re part of something he calls “the authorities,” who control everything for their own nefarious but never explained purposes.

… Greenwald? In his mind, he is not a reformer but a ruthless revolutionary — Robespierre, or Trotsky. The ancien régime is corrupt through and through, and he is the man who will topple it. Sounding now like Herbert Marcuse with his once fashionable theory of “repressive tolerance,” Greenwald writes about “the implicit bargain that is offered to citizens: Pose no challenge and you have nothing to worry about. Mind your own business, and support or at least tolerate what we do, and you’ll be fine. Put differently, you must refrain from provoking the authority that wields surveillance powers if you wish to be deemed free of wrongdoing. This is a deal that invites passivity, obedience and conformity.”

Kinsley then resorts to a classic authoritarian argument, namely that the fact that some people are still willing to speak freely about oppression must really mean that there isn’t any:

… If a majority of citizens now agree with Greenwald that dissent is being crushed in this country, and will say so openly to a stranger who rings their doorbell or their phone and says she’s a pollster, how can anyone say that dissent is being crushed? What kind of poor excuse for an authoritarian society are we building in which a Glenn Greenwald, proud enemy of conformity and government oppression, can freely promote this book in all media and sell thousands of copies at airport bookstores surrounded by Homeland Security officers?

No, Michael. What this means, given the real examples of oppression which have occurred and the oppressors’ clear intent to expand their oppression, that their handiwork is still in the early stages of construction.

Continuing:

… The Snowden leaks were important — a legitimate scoop — and we might never have known about the N.S.A.’s lawbreaking if it hadn’t been for them. Most leaks from large bureaucracies are “good” leaks: no danger to national security, no harm to innocent people, information the public ought to have.

The trouble is this: Greenwald says that Snowden told him to “use your journalistic judgment to only publish those documents that the public should see and that can be revealed without harm to any innocent people.” Once again, this testimony proves the opposite of what Greenwald and Snowden seem to think. Snowden may be willing to trust Greenwald to make this judgment correctly — but are you? And even if you do trust Greenwald’s judgment, which on the evidence might be unwise, how can we be sure the next leaker will be so scrupulous?

The question is who decides. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.

Allow me to rephrase Kinsley’s final excerpted paragraph for the 1970s:

The question is who decides. It seems clear, at least to me, that the New York Times and its reporters should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Daniel Ellsberg, we still are), that decision must ultimately be made by the Nixon administration. No doubt the government will be overprotective of the secrets it possesses about the conduct of the war in Vietnam. The adminsitration should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Daniel Ellsberg and the New York Times.

Is it possible that Michael Kinsley’s deference to the judgment of presidential administrations and government bureaucrats is a quirky, illiberal belief he has long held and is just now revealing? No, and it took about five minutes of Googling to prove it.

In a 2006 Washington Post column, Kinsley went after the Bush 43 administration for refusing to release documents, and was clearly unwilling to defer to its judgment. The subject was the CIA’s detention and possible torture of terror suspects in foreign locations:

For years, all the intelligence agencies have been tussling with the American Civil Liberties Union over documents about the innovative Bush administration policy of locking people up in foreign countries where they can be tortured without the inconvenience of anyone knowing about it or bringing up, you know, like, the Constitution. It is not yet clear — though there is little reason for optimism — whether the courts will let them get away with it, but the official position of the executive branch under President Bush is that the U.S. government can lock you up anywhere in the world, torture you and tell no one about it. And if someone does find out and starts talking trash like “habeas corpus” or “Fourth Amendment,” too bad: It’s all okay under the president’s inherent powers as commander in chief. Congress — unbeknownst to Congress — approved it all in its resolution shortly after Sept. 11, 2001, urging the president to fight terrorism. And the president deputized the CIA and other agencies to go forth and use this authority, in documents that you can’t have and that may or may not exist.

According to the logic Kinsley used on Greenwald, the Bush 43 administration should have been entitled to determine whether or not it would release relevant documents in this matter — and not any pesky journalists who might have been able to obtain any of them.

Sadly, Glenn Reynolds’s suspicion has been validated. Michael Kinsley’s positions on government secrecy are malleable, and depend on who’s in the White House. I don’t doubt for a minute that anyone enterprising enough to go through Kinsley’s column archives and his years of “Crossfire” footage would find more of the same two-faced posturing.

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